WAITING FOR JUSTICE

The United States Supreme Court recently heard from 83-year old Edie Windsor, who lost her spouse Thea Spyer in 2009 and was promptly presented with a $363,000 estate tax bill, which she wouldn’t have had to pay had she been married to a man. The reason was the Defense of Marriage Act (DOMA). It prevents the federal government from recognizing the legal marriages of same-sex couples and treats them as single with respect to taxes, benefits and more than 1,000 other rights and obligations. The Windsor case is one of two marriage equality cases the court is currently reviewing.

In addition to the core constitutional issue of equal protection under the law presented in Windsor and Perry v. Hollingsworth (California’s Proposition 8 case), there are a number of other important legal questions facing the court. What happens when the government refuses to defend a law it has come to view as unconstitutionally discriminatory? Can the voters take away the rights of a minority group? If procreation is the purpose of marriage, should couples who cannot or do not want to have children be permitted to marry? Can the federal government override the traditional right of the states to determine who is eligible for marriage?

But perhaps the most important question before the court is whether it is too soon to decide if gay and lesbian couples are constitutionally guaranteed the freedom to marry. Opponents of marriage equality, and clearly some justices, say we should wait until we have more experience with same-sex marriage. But waiting carries with it a heavy price.

That price is paid by the 40,000 California children in families headed by same-sex couples who want, as Justice Anthony Kennedy noted, their parents to have full recognition and full status. In Massachusetts, which has had marriage equality since 2004, studies indicate that marriage has had a positive effect on children. They are happier, feel more secure and protected, and see their families as being validated by society as a result of their parents being able to marry.

The price is also paid by the thousands of couples like Edie Windsor and Thea Spyer, who had been together since the 1960s. These couples, as Justice Ruth Ginsburg stated, are relegated to a “skim milk” version of marriage – lacking in the full richness of the marriages of heterosexual couples – because they are restricted to the second class institutions of civil unions and domestic partnerships. The stigma and ostracism experienced by couples who cannot marry causes them stress and depression. And they are often poorer, due to lack of dependent health coverage, spousal survivor benefits, even the right to retain the family home after one partner dies.

When we ask whether America is ready for marriage equality, the answer is that these most directly affected Americans are more than ready. But so is the rest of America.

We have reached a tipping point in terms of public opinion, with as many as 58 percent of Americans believing that same-sex couples should be able to wed. One hundred and thirty-one prominent Republicans signed onto a friend-of-the-court brief urging the court to recognize marriage equality, including former California gubernatorial candidate Meg Whitman, former Utah governor and presidential candidate Jon Huntsman, and Steve Schmidt, who ran John McCain’s 2008 presidential campaign. They all think we have waited long enough to recognize that it is wrong to deny our LGBT sisters and brothers, sons and daughters, friends, neighbors and colleagues, the equality and dignity that is every American’s birthright.

Justice can be a slow process of evolution. In 1952, only 4 percent of Americans believed that interracial marriage should be permitted. The Supreme Court’s 1967 landmark ruling in Loving v. Virginia, which recognized a fundamental right to marry for interracial couples, was not universally embraced. Five years after Loving, support for interracial marriage was only up to 37 percent. Even in 2011, 14 percent of Americans were still opposed to interracial marriage. If the court had waited for everyone to catch up, we would still be waiting.

But our system doesn’t require everyone to agree. The U.S. Constitution was not enacted to protect majority groups. Rather, our forefathers wrote our Constitution to protect the dignity, well-being, and freedom of minorities who may not be fully embraced by all. Perry and Windsor are about children and committed couples, but they are also about all of us who share a vision of the American ideal of equality. We all look to the Supreme Court to advance justice.

Valdez is a partner with the San Diego civil litigation law firm Sandler, Lasry, Laube, Byer & Valdez LLP. He is a member of the board of directors of the San Diego LGBT Community Center, a former chair of the San Diego Ethics Commission, and former chair of San Diegans For Equality.